Adair v. State

336 S.W.3d 680, 2010 WL 3564842
CourtCourt of Appeals of Texas
DecidedMarch 30, 2011
Docket01-08-00183-CR
StatusPublished
Cited by13 cases

This text of 336 S.W.3d 680 (Adair v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Adair v. State, 336 S.W.3d 680, 2010 WL 3564842 (Tex. Ct. App. 2011).

Opinions

OPINION

GEORGE C. HANKS, JR., Justice.

A jury found, appellant, James Lance Adair, guilty of the offense of possession of methylenedioxy methamphetamine (commonly known as “ecstasy”), weighing between 4 and 400 grams,1 and, after appellant pleaded true to two enhancement paragraphs, the trial court assessed his punishment at confinement for twenty-five years. In three issues, appellant contends that the trial court erred in denying his Batson2 challenge, the evidence was legally insufficient to show that his prior convictions were final for enhancement purposes under section 12.42 of the Texas Penal Code,3 and the trial court erred in overruling his objection to the State’s improper jury argument that he was a “dope dealer,” “not just an addict,” and “the problem.”

We affirm.

[684]*684Factual and Procedural Background

On April 12, 2007, Houston Police officers conducted surveillance of a business prior to executing a search warrant on the business. Officers observed heavy foot traffic and activity around the business, and they concluded based upon their observations that narcotics were being sold at the business. Officer R. Jordan testified that, while conducting surveillance outside the business, he saw appellant exit the business, get into a car parked on a road near the business, and drive the car directly in front of the front door of the business. Appellant then exited the car, opened the back door, and unloaded two bags from the car. Appellant then walked back .into the business holding the bags. Jordan stated that one bag resembled a bowling bag and the other bag resembled a square briefcase.

Jordan stated that, shortly thereafter, a team of officers executed the search warrant and entered the business. After the team of officers secured the business and waved Jordan inside, Jordan identified appellant among a room full of other individuals who had been apprehended by the team of officers. Jordan also identified the two bags that he had seen appellant take into the business.

Officer Sinegal, who was among team of officers executing the search warrant, tes-tifiéd that when he and the team of ten officers entered the business, appellant and the other individuals inside the business attempted to flee. Officer Jordan then entered the business, identified appellant, and pointed out the two bags that he had seen appellant carrying. In one of the bags, officers found several bags that were individually sealed and contained white pills subsequently determined to be ecsta-cy and another bag that contained additional pills. There was also a large bottle of codeine and codeine-type syrup. In addition, officers found — inside and throughout the business — codeine, crack cocaine, marijuana, ecstacy, and other narcotics, along with narcotics paraphernalia. The officers arrested appellant and six other individuals who were inside the business. Officers discovered that appellant had $1200, a cell phone, and a book that Officer Sinegal described as a “drug ledger” with references to names, dollar amounts, and various types of narcotics, including ecsta-cy, in his possession. When asked what a drug ledger is, Sinegal explained, “Drug dealers, if they sell narcotics, most times they’ll keep amounts of narcotics sold, if any money is owed due to narcotics, and pretty much running a tally of the street total they should receive from the narcotics sold.”

Batson Challenge

In his first issue, appellant contends that the trial court erred in denying his Batson challenge. See, e.g., Batson v. Kentucky, 476 U.S. 79, 86, 106 S.Ct. 1712, 1717, 90 L.Ed.2d 69 (1986). Appellant asserts that the record rebuts the State’s proffered reasons for striking two African-American venire members, juror numbers 7 and 39. Appellant further asserts the State used 60% of its peremptory strikes against African-Americans when the eligible panel was made up of 32% African-Americans and that the State “executed strikes against blacks but did not strike similarly situated non-blacks.”

Following voir dire, the trial court asked the parties if there were any objections to seating the jury.- Appellant asserted a Batson challenge, complaining that the State “used six of their ten strikes to strike blacks.” The trial court responded that there were three African-Americans seated on the jury and at least three Hispanics on the jury. The trial court further stated it had not observed any systematic [685]*685racial strikes by this particular prosecutor in previous cases. The trial court then instructed the State to offer any explanations for its strikes, if it had any.

The State then explained its reasons for striking the six African-American jurors identified by appellant in his Batson challenge.4 In regard to the two jurors identified by appellant on appeal, the State explained that it struck juror number 7 for several reasons, including the fact that he was unemployed. The State explained it struck juror number 39 because he put “no information on his juror information card.” The State also offered race-neutral explanations as to the other challenged jurors, and these explanations are not challenged on appeal. After the State proffered its race-neutral explanation, the trial court gave appellant’s trial counsel the opportunity to respond, but counsel indicated he did not have anything further.5 The trial court found the State’s explanations to be race-neutral and denied appellant’s Batson challenge.

A. Applicable Law

The use of a peremptory challenge to strike a potential juror because of race violates the equal protection guarantee of the United States Constitution and Article 35.261 of the Texas Code of Criminal Procedure. See Batson at 476 U.S.at 86, 106 S.Ct. at 1717; Tex.Code Crim. Proc. Ann. art. 35.261 (Vernon Supp. 2009). In the face of perceived purposeful discrimination, a party may request a Batson hearing. Tex.Code Crim. Proc. Ann. art. 35.261.

Batson provides a three-step process for a trial court to use in adjudicating a claim that a peremptory challenge was based on race. Snyder v. Louisiana, 552 U.S. 472, 476-77, 128 S.Ct. 1203, 1207, 170 L.Ed.2d 175 (2008); Watkins v. State, 245 S.W.3d 444, 447 (Tex.Crim.App.2008), cert. denied, - U.S. -, 129 S.Ct. 92, 172 L.Ed.2d 78 (2008). The opponent of a peremptory challenge must first make a prima facie case that the peremptory challenge was exercised on the basis of race. Snyder, 552 U.S. at 476, 128 S.Ct. at 1207; Watkins, 245 S.W.3d at 447. If that showing has'been made, the burden of production shifts to the proponent of the strike to offer a race-neutral basis for striking the juror in question. Snyder, 552 U.S. at 476-77, 128 S.Ct. at 1207; Watkins, 245 S.W.3d at 447. In Purkett v. Elem, the United States Supreme Court explained that the issue in step two is the facial validity of the prosecutor’s explanation, and “[u]nless á discriminatory intent is inherent in the prosecutor’s explanation, the reason offered will be deemed race neutral.” 514 U.S. 765, 768, 115 S.Ct.

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Bluebook (online)
336 S.W.3d 680, 2010 WL 3564842, Counsel Stack Legal Research, https://law.counselstack.com/opinion/adair-v-state-texapp-2011.